State of Connecticut v. Commonwealth of Massachusetts

• Decision Date: 24 February 1931
• Docket Number: No. 12,O,12
• Citation: 75 L.Ed. 602,282 U.S. 660,51 S.Ct. 286
• Parties: STATE OF CONNECTICUT v. COMMONWEALTH OF MASSACHUSETTS. riginal
• Court: U.S. Supreme Court

282 U.S. 660

51 S.Ct. 286

75 L.Ed. 602

STATE OF CONNECTICUT

v COMMONWEALTH OF MASSACHUSETTS.

No. 12, Original.

Argued Jan. 5, 6, 1931.

Decided Feb. 24, 1931.

Messrs. Ernest L. Averill, of Branford, Conn., and Benedict M. Holden, of Hartford, Conn., for the State of Connecticut.

[Argument of Counsel from page 661 intentionally omitted] Messrs. Bentley W. Warren, of Boston, Mass., and Gerald J. Callahan, of Springfield, Mass., for the Commonwealth of Massachusetts.

Mr. Justice BUTLER delivered the opinion of the Court.

The State of Connecticut brought this suit against the Commonwealth of Massachusetts to enjoin her from diverting waters from the watershed of the Connecticut river to provide water for Boston and neighboring cities and towns.

Legislation of Massachusetts authorizes diversion into the Wachusett reservoir of the flood waters of the Ware river, chapter 375, St. 1926, and of certain waters of the Swift river, chapter 321, St. 1927. The watersheds of these rivers are about midway between the Boston district and the westerly boundary of the Commonwealth. They are tributaries of the Chicopee; all are nonnavigable streams wholly within Massachusetts. The Chicopee empties into the Connecticut just above Springfild. The latter rises in Canada and northern New Hampshire. It flows between New Hampshire and Vermont through Massachusetts and Connecticut into Long Island Sound. It is about 345 miles long and drains 11,300 square miles of which 1,385 are in Connecticut.

The complaint alleges:

Connecticut and Massachusetts recognize the common-law doctrine that riparian owners have the right to the undiminished flow of the stream free from contamination or burden upon it. Connecticut appears as owner of riparian lands and of the bed of the river and as parens patriae. The proposed diversion will take water tributary to the Connecticut entirely out of its watershed, will impair navigability of that stream, will take flood waters, and thereby cause damage to agricultural lands that are subject to yearly inundation. The Connecticut is now heavily burdened with offensive matter put into the river in Massachusetts and requires all the water that naturally comes down the river to prevent it from becoming a nuisance and menace to public health. The diversion will destroy property of Connecticut and of its inhabitants without due process of law and cause injury for which there is no adequate remedy at law. The diversion presently proposed is only a portion of that covered by the plan adopted by Massachusetts which includes the acquisition of the waters of other tributaries of the Connecticut.

By its answer and amendments thereto Massachusetts denies that the proposed diversion will cause any injury or damage, and avers that the amount of water to be taken is negligibel when compared with the flow of the river where it enters Connecticut, that an emergency exists in Massachusetts constituting a justification for a reasonable use of such waters, that the serious injury to the people of the Commonwealth if diversion be prohibited compared to the trival damage possibly caused to Connecticut and its people if diversion be permitted should lead a court of equity to give substitutional relief rather than that specifically prayed, that Connecticut's contention that the diversion will interfere with navigation is not open in the absence of proof that Massachusetts has diverted or actually proposes to divert more water than is permitted by the War Department, that the proposed diversion is in all respects a reasonable use of the waters in question, and that the project will stabilize the flow of the river and result in benefit to Connecticut and the lower riparian owners.

By its reply, Connecticut denies Massachusetts' affirmative allegations and alleged that there is no necessity for the diversion and that there is an adequate supply of water in the eastern part of Massachusetts.

The Court appointed Charles W. Bunn of Minnesota as special master and authorized him to take and report to the Court the evidence together with his findings of fact, conclusions of law and recommendations for a decree. The master filed his report and the evidence introduced by the respective parties. It shows that he heard arguments in their behalf, and sets forth his findings and conclusions with a recommendation that the bill be dismissed and that (if it be held that lack of present purpose further to develop power at King's Island does not warrant denial of injunction on that ground) the decree contain a provision for the protection of the owner of the dam and power at that place. Connecticut filed numerous exceptions. Massachusetts made no objection to the report. The Court has heard the arguments of counsel and considered their briefs for and against the exceptions and upon the final submission of the case.

The report shows that Connecticut sought to prove that any subtraction from the flow of the Connecticut river through that State will cause serious damage to the State and its people in that it will impair the navigability of the stream, lessen productivity of river bottom lands by diminution of inundation during times of high water in each year, diminish the power capable of development at King's Island, diminih t he run of shad in the river and decrease its capacity to discharge and destroy sewage.

The brief substance of the master's findings of fact follows:

Boston and the surrounding metropolitan area are faced with a serious water shortage in the near future and there is need for a large quantity of additional water. That district includes 35 cities and towns having a population of 1,900,000. Other nearby cities and towns are likely in the future to depend on that district for water supply. The total population concerned is now 2,860,000 and it is estimated that it will reach 4,572,000 within forty years. There is no serious dispute about the need of the region to provide presently for additional water.

Massachusetts applied to the Secretary of War (Act March 3, 1899, § 10, 30 Stat. 1151 (33 USCA § 403)) for authority to make the proposed diversions. After hearing both sides and examining the facts, the Secretary permitted diversion of the flood waters of the Ware in excess of 85 million gallons per day between October 15 and June 15 and prohibited the taking of any water except during that period. He permitted diversion of all waters of the Swift except enough to maintain a flow therein of 20 million gallons per day; but he required that, during the period from June 1 to November 30 there shall be released from the impounding dam 110 cubic feet per second (71 million gallons per day) whenever the flow of the Connecticut at Sunderland, Mass. (a town 20 miles north of the confluence of the Chicopee and Connecticut), is 4,650 cubic feet per second or less, and 70 cubic feet per second (45 million gallons per day) when the flow is more than 4,650 and less than 4,900 cubic feet per second. The Secretary found that the discharge at Sunderland of 4,650 cubic feet per second corresponds to an average gauge height at Hartford of 2 feet and that a discharge of 4,900 cubic feet per second corresponds to 2.1 gauge height at Hartford.

The annual flow of the Connecticut at the Massachusetts-Connecticut boundary is about 17,000 cubic feet per second, approximately 11,000 million gallons a day. The watershed above that boundary is 9,915 square miles. The drainage of the Ware at the point of diversion on that river is 98 square miles and that of the Swift at the point of diversion is 186 square miles. The diversion permitted by the Secretary will furnish about 191 million gallons per day. The Massachusetts Acts do not authorize the diversion of any waters other than the Ware and Swift and as to these the record shows that (as far as counsel can commit it) Massachusetts proposes to abide by the War Department requirements and restrictions.

The total area subject to such diversions is 2.93 per cent. of the watershed above Connecticut. The permitted diversions represent an average yearly subtraction from the flow of the Connecticut at the state line of about 2 per cent.; but 94 per cent. of this occurs when the Hartford gauge reads above 3.5 feet which means 11.5 feet depth of water. The Government has heretofore sought to maintain 10 feet of water below Hartford. A War Department project contemplates a 12 foot channel. (On that bottom level, 3.5 feet on the gauge would mean 13.5 feet of water.)

Dredging is required every year to maintain a channel of 10 feet over numerous bars below Hartford. Navigation is difficult when the depth falls below 10 feet. There is no difficulty when there is 12 or even 11 feet. The required release of water from the Swift river reservoir during periods of low water will somewhat benefit navigation. The maximum diversions are at high water and lessen depth 5 to 6 inches. At medium stages the diversion is less and at very low stages the flow is increased. The diversion will not perceptibly or materially interfere with navigation.

The height of floods will be lessened from one to six inches. Because of the diversion, small pieces of hay land will fail to receive flood waters. It is impossible to determine from the evidence to what extent that will occur. Te l essening of spring floods will have its advantages and disadvantages; it will reduce some damages and increase others. The damage to the hay land is not shown to be of serious magnitude; and, far from being established by clear and convincing evidence, it is not shown by evidence making it possible of computation or proving that it is large.

There is shown one possible development of power. It is at King's Island in Connecticut where 4,000 horse power is now produced. The owner has been authorized by the Federal Power Commission to build a higher dam to develop approximately 50,000 horse power. It is not shown that the company has determined so to...